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Legislative and Regulatory Reform Act 2006

Posted by James Hammerton @ 1:09 pm on 24 November, 2006.
Categories political liberties, democracy and the rule of law, British politics, accountability.
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The Abolition of Parliament Legislative and Regulatory Reform Bill was passed by Parliament back in October and is now the Legislative and Regulatory Reform Act 2006(LRR Act).

The Save Parliament weblog has responded with a post suggesting that, whilst they still had concerns, the final approved Act was much improved on the Bill and far less dangerous. Thus they argue it no longer deserved the Abolition of Parliament Bill label that various critics, myself included, had been using:

“(David Howarth) described the Bill in its earlier stages as the abolition of Parliament Bill,but now it is not. It has been filleted, dissected, deconstructed and reconstructed. It is now a better Bill because … lame-brained arguments … have been abandoned by the Government. … At that time, it was a thoroughly bad Bill that did things that were way beyond its stated scope. Now, it has been brought back under control.”

As he points out, the Bill is vastly better than it was when it was first proposed, and we have you to thank for that. This Bill was not just fixed by MPs discussing in Parliament, it was fixed by you, the general public, applying pressure to your representatives, and raising the profile of this Bill so that it could not be ignored. You should all be very pleased that we got as much fixed as we did.

So does this mean we need not worry about the LRR Act any longer? A hint that all might not be well can be seen in one of the comments, from someone called Dave Gould, on Save Parliament’s weblog:

I shall be getting my MP to write to David Howarth to find out why he thinks it’s now “under control”.

It still looks like ANY amendments/revoking of our constitution can be make by secondary legislation with the small proviso that it has to be passed by a committee of hand-picked Labour MPs first.

The argument that constitutional changes eg abolishing elections can be blocked in a judicial review is dubious at best. And who is going to fund these judicial reviews?

The crucial question then is what does the LRR Act (which has Royal Assent now) actually say? The following is an overview of the main points of the LRR Act as it relates to legislative power:

  • Section 1 sets out a broad power for Ministers to make any provision they consider would serve the purpose of removing or reducing a burden or reducing the overall burdens of any person affected by a piece of legislation. A burden means any of the following:
    • A financial cost,
    • An administrative inconvenience,
    • An obstactle to efficiency, productivity or profitability,
    • A sanction, criminal or otherwise, which affects the carrying out of a lawful activity.

    On the face of it, this is a very broad power. E.g. could abolishing jury trial in favour trial by judge, be considered as a measure to reduce burdens (both financial and administrative) on jurors and those running the courts? However there are “safeguards” to consider…

  • Section 3 sets out pre-conditions that the Minister must consider satisfied before making orders under the Act. These are:
    • that the policy objective cannot be achieved without legislation,
    • that the effect of the provision he makes is proportionate to the policy objective,
    • that the provision strikes a fair balance between the public interest and the interests of anyone adversely affected by it,
    • the provision does not remove any necessary protection,
    • the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise,
    • the provision is not of constitutional significance.

    A key point to note about this is that all of these preconditions are a matter for the Minister’s judgement, thus he must consider that these preconditions are met. However, they do provide scope for opposition when the orders are scrutinised and any judicial review might be able to argue the preconditions were not met. The key question in considering the impact of section 3, is therefore how much scope for scrutiny and judicial review will there be?

  • Section 4 restricts the power to delegate legislative functions such that they can only be delegated to government ministers, people who have had legislative power delegated to them in prior legislation or office holders or bodies created by the orders. It also restricts such delegation of legislative powers such that they have to be exercised via statutory instrument if they are delegated or confered on ministers of the crown.

    Note that an order under this LRR Act can confer legislating powers on office holders or bodies created by the order itself, thus cutting Parliament out of the loop completely.

  • Section 5 prevents orders being used to create, abolish or vary taxes, however it explicitly allows their application to be varied. E.g. it would be possible to extend VAT to items not currently taxed this way for example.
  • Section 6 prevents criminal penalties of more than 2 years in jail or a fine of level 5 being imposed by an order.
  • Section 7 prevents powers authorising forcible entry from being enacted via the Act.
  • Section 8 protects the Human Rights Act (HRA) and part 1 of the LRR Act itself (all sections up to section 20). This brings the LRR Act into line with the Civil Contingencies Act (CCA) which has similar protections for the HRA and the CCA itself, and was not originally in the bill.
  • Sections 9, 10 and 11 prevent the LRR Act from being used to legislate in areas devolved to the Scottish, Northern Irish and Welsh assemblies.
  • Sections 12 to 18 set out the procedure to be followed. The Minister must first consult with various people he considers appropriate (big deal), and then lay out a draft order in both Houses of Parliament with an explanatory document and recommendation for which of the following procedures to following:
    • The negative procedure. Parliament has 40 days to object before the order is made, either by one House passing a resolution against it or for a committee of either House to recommend rejecting it, whereupon it will fall unless the same House rejects the recommendation. The committee can only report with its recommendation after 30 days and before 40 days have passed.
    • The affirmative procedure. Parliament has 40 days to approve the order in both Houses. A committee of either House can, after 30 days and before 40 days, recommend abandoning the order in which case a resolution rejecting the recommendation is required.
    • The super-affirmative procedure. Parliament has 60 days to approve the order, or recommend changes. The Minister can enact a revised order if Parliament approves, or the original order if Parliament approves.

    Note that the Minister can recommend a procedure but either House can insist on a more stringent procedure, e.g. if the Minister recommends the negative procedure, either House can insist on the affirmative procedure or the super-affirmative procedure. If he recommends the affirmative procedure they can insist on the super-affirmative procedure. 30 days are allowed for each House to change the procedure otherwise the Minister’s recommendation applies.

    Also, orders cannot be amended by Parliament, only accepted or rejected, and even the super-affirmative procedure keeps the government in control of what finally appears in a revised order.

Overall it seems to me that the Act is a mild improvement on the Bill, e.g. its legislative powers can’t be used to amend the foregoing powers and procedures, and the Human Rights Act is protected. The powers are drawn more tightly, but unfortunately are still framed to a large degree in terms of the judgement of the Ministers creating the orders. The level of scrutiny afforded to LRR Act orders is about the same as that in the original Bill, though House committees can report on such orders they’re likely to be controlled by the government and the timescales themselves will prevent adequate scrutiny. The ability to use LRR Act orders to cut Parliament out of the legislative loop is still there, if more difficult to use.

I see nothing to stop the abolition/curbing of jury trials being enacted via these orders, other than a vigilent Parliament (the European Convention on Human Rights applies to many countries that don’t have jury trial, thus the HRA isn’t going to stop that). By the time a judicial review comes into play it’s a fait accompli to be overturned only if the Minister is found to have acted outside his powers.

I think the LRR Act now deserves the label “Undermining and Sidelining of Parliament” Act. It should be repealed. If Parliament is having difficulties coping with the legislative load that’s an argument for cutting down on the amount of legislation pushed through it, not making it easier to push legislation through by reducing the opportunities for scrutiny and for amendments to be made.

6 Comments

  1. Thank you for this. Well done. Save Parliament are a joke.

    Comment by Hosay — 24 November, 2006 @ 3:07 pm | Edit This


  2. If the enemy tries to advance 1 mile but you push them back to half a mile, has the enemy still advanced.

    Agree about Save PArliament, it is either poorly done or is a red herring, false opposition.

    I too have done some analysis of this Act, and I conclude that it is a power grab by the executive. (If any one wishes to compare my notes on it- see this link www.urban75.net/vbulletin/showthread.php?t=184810&highlight=legislative+regulatory
    You will have to join the forum)

    If this Act was supposed to be for ‘reducing the burden of legislation’ on businesses, why then has Section 6 conferred the power to create new criminal penalties?

    I believe the original bill was worse, but the Act is still nearly as bad. We have gone nearly as far, and I strongly feel this is a very important and historical piece of legislation, that gives a great deal of power and influence to the ‘inner party’, or ‘the cabinet.’

    The website ‘saveparliament’, which I believe is poorly done, or is a red herring, fails to even look at the Act. It just complacently declares that the danger was blocked.

    This is not true, this Act is a BIG advance for tyranny.

    It also is supposed to be ’streamlining’ the adoption of European directives according to the official summary. More disenfranchisement for us.

    Good website. Good to see others noticed and where disturbed by this important legislation.

    I’ll leave you with this analysis from law firm Shepperd Wedderburn - which goes further than me in my attempts to be cool and analytical.
    www.shepwedd.co.uk/knowledge/article/679-1096/legislative-and-regulatory-reform-act-2006/current/

    ‘Despite the amendments made to limit Ministers’ powers from those that raised such concern early on, the Act still allows the amendment of primary legislation by Ministerial Order. The restriction to this is that the proposed amendments must remove or reduce regulatory burdens. However, the assessment for whether a particular amendment does this is subject to a subjective test. That is, it is only required that the Minister himself or herself believes that the order would serve the purpose of removing a burden. The House of Lords, in the third reading of the Bill, noted the difficulty of reviewing Ministerial action given this subjective test, as opposed to an objective one. An objective test would allow courts to quash a provision on the basis that, on the balance of probabilities, the order would not allow such a purpose. Despite this, the subjective test survived and remains part of the Act.

    The amendments made have enabled a controversial Bill to become an official Act of Parliament; it remains to be seen what effect the Act will have when it comes into force on 8 January next year. In any case, the passing of Act is a success for the Government, which is currently working to improve regulation in the United Kingdom.’

    Comment by Eddy — 3 January, 2007 @ 8:08 pm | Edit This


  3. Hi there! Only just found this. I’m from Save Parliament, so thought I should pop by and say hello. I’m not going to give a specific response to your analysis of the bill right now, as I’m too tired, and I’m not a lawyer. I’ll try and get our activist who is to respond. (You can see our three main objections to the Act at the bottom of this page http://www.saveparliament.org.uk/problem.php)

    You may feel we’re a joke or a red herring, that’s fine. However, what I can tell you is that we’re a genuine civil society group who came together on the Internet, entirely to campaign against this specific Bill (now Act, alas :( ).

    The 2001 Act (which the 2006 one builds on) is also awful. It would be a bit meaningless now to campaign against the 2006 Act without also campaigning against the 2001 one. Which would be a worthy thing to do.

    You’re right that we could do that, but frankly we’re too exhausted. We can’t do everything, although we all try to do lots. But one thing we do do is pick issues where we can be effective and make a difference. Which I believe we did on this Bill.

    Yes, the “enemy” did still advanced, all we did is hold them back a bit. But I’m personally also “attacking” on lots of other fronts (from http://www.theyworkforyou.com to http://www.pledgebank.com). A “war” isn’t about quixotically trying to alter something which you can’t alter, but about picking battles that will either succeed easily, or that will surprise, outflank, trick the “enemy”. In the case of the LRRB, the Government were completely wrong footed - they never expected anyone to notice what was happening, or to be so worried about it on such a large scale. So, we had some impact, relatively easily.

    Of course, it would be FANTASTIC if you could run an organised campaign against the 2001 and 2006 Acts, or in general do anything effective to strengthen Parliament’s hand against the Executive.

    But you can’t expect a campaign like Save Parliament to do that work for you. We’re not funded, we’re just volunteers. We can only make an impact where it is easy to do so. Or we spend our time trying to improve society in more effective ways. Our choice.

    If you have any concrete and relevant actions you’d like us to publicise on our blog, website or to our mailing list, then get in touch. That offer applies to anyone out there!

    Comment by Francis Irving — 3 February, 2007 @ 3:21 am | Edit This


  4. I think you misunderstand the position taken by Save Parliament. We campaigned against a particularly nasty government measure in the form of the legislative and regulatory reform bill. We organised a large number of people to take action and worked hard on giving the bill enough publicity that MP’s would begin to take notice.

    One of the problems in the beginning was that most people — MP’s included — simply didn’t notice the seriousness of what was being done. We were one of the first groups to start making serious waves about it and that was useful.

    The Bill is now passed. We needed to sign off on the campaign and let our supporters know that they had made a difference. Sadly we did not manage to block the bill completely — that was always going to be difficult — but the powers in the Act are much less awful than they were in the bill.

    Its important to remember that there already was a bill which gave potentially sweeping powers (such as to remove trial by jury) to ministers. That was the Regulatory Reform Act. If our campaign had succeeded completely and the Act not passed, we would still have been faced with the potentially dictatorial powers in the earlier RRA. In judging how much worse the new Act is you have to factor out the powers that the government already had under the RRA.

    I quite agree that the new Act has permitted the government to inch further towards being able to bypass parliament, but not as far as you seem to believe because you aren’t taking into account what the government could already do.

    Bear in mind also that the government can do almost what it likes because it effectively controls the House of Commons and can push through legislation (which can do anything). The major fetter on this power is bad publicity and the House of Lords (which slows things down). Who knows how long the HL will last.

    A specific point: removal of trial by jury is already happening (eg for “complex” fraud trials) and most crimes aren’t tried by jury anyway. I think this is a bad and terrible thing, but an RRO under the new Act that tried to do such a thing would probably generate sufficient publicity for it to be blockable. The problem is most RRO’s won’t.

    Anyway, I am really defending our campaign against being called “a joke”. None of us like the Act. I carried out a close and detailed analysis of it as part of the campaign (rather more thoroughly than above) and there are more difficulties with it than you have outlined. More to the point, research suggests that there is no evidence it was needed at all. In other words, the government asked us to give them more power without having made any case for their need to do it. That is an important point which we made again and again.

    The campaign is now over — because the bill is now passed.

    Comment by Francis Davey — 3 February, 2007 @ 11:03 am | Edit This


  5. Francis,

    Thankyou for your comments, apologies for the delay in allowing them through.

    It seems to me that your primary issue is with the two comments, from “Hosay” and “Eddy”, that were posted before yours, one of which branded Save Parliament as a “joke”, rather than with my original analysis of the LRR Act.

    I appreciate that Save Parliament did manage to generate considerable publicity about a bill no-one had even heard of beforehand and caused the government to pause and to make some adjustments to the bill. Even getting that far was a significant achievement.

    I think the campaign went well right up until the government reintroduced the bill on the same day as the local elections were taking place (if I recall correctly), thus ensuring attention was elsewhere, and claimed they’d done a major rethink when they’d merely tinkered at the edges. After that point, for whatever reason, Save Parliament didn’t manage to regain the initiative. A battle lost, but not without slowing the enemy when even doing the latter required a lot of effort.

    I don’t share Hosay or Eddy’s views that Save Parliament are “a joke” or “red herring”, but I should perhaps have clarified that when they posted their comments. I did think at the time I posted the original article that the final posting on the Save Parliament weblog was overly upbeat, and still do.

    I certainly do not agree that the bill has been “filleted, dissected, deconstructed and reconstructed”. However your comments here suggest I need to go and look at the 2001 Act and compare it to the 2006 Act to see how much difference has been made. However in comparing the original LRR bill and the resultant LRR Act it seemed to me the differences were minor and it seems we do disagree on that.

    That said, I appreciate that stopping the legislative steam roller takes huge effort even for just one bill, or one part of one bill, and that impact of Save Parliament’s campaign must be seen in that light. I don’t think it was wasted effort — people are more aware of the authoritarian and anti-democratic nature of this government as a result of it.

    I’d also say our differing views on the LRR Act are far less important than the ongoing struggle to get people to realise what’s going on in this country and to set about stopping and reversing the dismantling of civil liberties, the rule of law and the checks and balances on executive power that this government has been engaged in.

    Comment by James Hammerton — 4 February, 2007 @ 10:02 pm | Edit This


  6. Yes, you’re absolutely right James. We need to keep watching like hawks. To be new checks and balances in the making even as we try to stop destruction of old ones. Thank you for being part of that.

    Comment by Francis Irving — 4 February, 2007 @ 11:55 pm | Edit This


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